Standards for Anti-Bribery Compliance Programs and Investigations in Argentina

Companies agree that the U.S. Foreign Corrupt Practices Act (“FCPA”) is the most important anti-bribery regulation in the world because it is actively enforced by the U.S. Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”).

In regard to Argentina, the SEC and the DOJ have imposed penalties on companies and individuals in more than a dozen cases of bribery where Argentine public officials were involved.

On April 5, 2016 the DOJ announced a 50% increase in the number of prosecutors at its FCPA Unit, the creation of 3 FBI squads devoted to FCPA investigations, the strengthening of collaboration efforts with enforcement authorities from other countries, and the creation of a one-year FCPA Enforcement Pilot Program (the “Program”).

The Program seeks to (a) further deter individuals and companies from engaging in FCPA violations, (b) encourage companies to implement strong anti-corruption compliance programs and (c) enhance the DOJ’s ability to prosecute individuals who might otherwise go undiscovered (this particular goal was previously addressed by the DOJ’s “Yates Memorandum” from September 9, 2015).

The Program sets forth that companies would be eligible for reductions of fines beyond those provided for under the US Sentencing Guidelines if they (i) voluntarily self-disclose the FCPA breach to the DOJ, (ii) fully cooperate with the DOJ in the investigation, and (iii) timely and appropriately remediate their anti-corruption controls. In such cases the DOJ may also decide not to appoint a monitor and to decline prosecution.

Local anti-corruption regulations are important as a potential defense against FCPA prosecution and to avoid actions that, although compliant with FCPA, could be in breach of local laws (e.g. facilitation payments).

Argentine regulations set many standards that are substantially different from those of the FCPA. For instance, there are material differences in the liability of companies in cases of corruption, the consequences of implementing a compliance program, the benefits of self-disclosing and collaborating with the authorities, evidence, privacy and privilege rules, as well as bribery defenses and exceptions.

Furthermore, the Argentine Government is proposing new anti-corruption regulations to introduce corporate liability for corruption, asset recovery in cases of corruption, enhanced transparency in government information, and benefits for those who once engaged in corruption and later on collaborate with the authorities.

It is very important to understand the differences between Argentine law and the applicable foreign legal frameworks when implementing anti-corruption compliance programs and conducting internal investigations.